Federalist/Anti-Federalist Papers: The Issue of the Separation of Powers
Concerning the principle of the separation of powers, the Federalists and the Anti-Federalists possessed differing opinions on the matter. The Federalists foresaw the benefits of such a system instilled in a federal government, while the Anti-Federalists were repelled by the intrinsic vices that they thought were naturally present within such a system. Both groups possessed both correct philosophies as well as ideas with fallacies about the distribution of powers within a central federal government. Hence, both sides had premonitions about the future of the government and about human nature that held to be true.
An explanation about this system will be presented, as well as the conflicting viewpoints of the two parties, and an article that will offer support of the current situation concerning the balance and separation of power within the current federal government.
The online encyclopedia Wikipedia explains the principle premise of separation of powers and checks and balances:
Separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model of democracy that involves the separation of political power between three branches of the state: The Executive, the Legislature, and the Judiciary. In the "separation of powers" model, each branch is prevented from exerting power in the field of responsibility of another branch. Nonetheless each branch of the state may be empowered to exert checks on the actions of the other branches.
The phrase "checks and balances" was also coined by Montesquieu. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.
Keeping each independent entity within its prescribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems.
The essential difference between the separation of powers as developed in common law theory and in France was that in the former, the checks and balances inherent in the mixed constitution and in Montesquieu's analysis were incorporated into the doctrine. In France, on the other hand, the judges were regarded as sources themselves of tyranny and not liberty as in England, and the hostility of Jean-Jacques Rousseau to any check or limit on the popular will, combined to establish the 'non-interference' model of the separation of powers.
Famously, the framers of the United States Constitution are said to have taken the best of many concepts including the then-new concept of the separation of powers in drafting the constitution. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way.
In Federalist No.47, James Madison contemplates and defends the particular structure of the new government and the distribution of powers among its different parts:
In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied.
The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
Antifederalist No.47 argues that “balance” of departments is not achieved under the new constitution:
I am fearful that the principles of government inculcated in Mr. [John] Adams' treatise [Defence of the Constitutions of Government of the United States of America], and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention. But it will appear in the sequel, that the construction of the proposed plan of government is infinitely more extravagant.
I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams' sine qua non of a good government is three balancing powers; whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community. He asserts that the administrators of every government, will ever be actuated by views of private interest and ambition, to the prejudice of the public good; that therefore the only effectual method to secure the rights of the people and promote their welfare, is to create an opposition of interests between the members of two distinct bodies, in the exercise of the powers of government, and balanced by those of a third. This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr. Adams, although he has traced the constitution of every form of government that ever existed, as far as history affords materials, has not been able to adduce a single instance of such a government. He indeed says that the British constitution is such in theory, but this is rather a confirmation that his principles are chimerical and not to be reduced to practice. If such an organization of power were practicable, how long would it continue? Not a day-for there is so great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one or the other body, and with every accession of power the means of further increase would be greatly extended. The state of society in England is much more favorable to such a scheme of government than that of America. There they have a powerful hereditary nobility, and real distinctions of rank and interests; but even there, for want of that perfect equality of power and distinction of interests in the three orders of government, they exist but in name. The only operative and efficient check upon the conduct of administration, is the sense of the people at large.
Suppose a government could be formed and supported on such principles, would it answer the great purposes of civil society? If the administrators of every government are actuated by views of private interest and ambition, how is the welfare and happiness of the community to be the result of such jarring adverse interests?
Therefore, as different orders in government will not produce the good of the whole, we must recur to other principles. I believe it will be found that the form of government, which holds those entrusted with power in the greatest responsibility to their constituents, the best calculated for freemen. A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided. In such a government the people are the sovereign and their sense or opinion is the criterion of every public measure. For when this ceases to be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin. The highest responsibility is to be attained in a simple structure of government, for the great body of the people never steadily attend to the operations of government, and for want of due information are liable to be imposed on. If you complicate the plan by various orders, the people will be perplexed and divided in their sentiment about the source of abuses or misconduct; some will impute it to the senate, others to the house of representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive. But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility. For then, whenever the people feel a grievance, they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election. This tie of responsibility will obviate all the dangers apprehended from a single legislature, and will the best secure the rights of the people.
Dr. Paul Craig Robert, with respect to separation of powers, compares the actions of President Bush to Caesar crossing the Rubicon (this was considered an attack on Rome, and hence treason), and goes on to explain his opinions about the balance, or lack thereof, of power in the current federal government:
The Republican interest in strengthening executive power has its origin in agenda frustration from the constraints placed on Republican administrations by Democratic congresses. The thrust to enlarge the president's powers predates the Bush administration but is being furthered to a dangerous extent during Bush's second term. The confirmation of Bush's nominee, Samuel Alito, a member of the Federalist Society, to the Supreme Court will provide five votes in favor of enlarged presidential powers.
President Bush has used "signing statements" hundreds of times to vitiate the meaning of statutes passed by Congress. In effect, Bush is vetoing the bills he signs into law by asserting unilateral authority as commander in chief to bypass or set aside the laws he signs. For example, Bush has asserted that he has the power to ignore the McCain amendment against torture, to ignore the law that requires a warrant to spy on Americans, to ignore the prohibition against indefinite detention without charges or trial, and to ignore the Geneva Conventions to which the U.S. is signatory.
In effect, Bush is asserting the powers that accrued to Hitler in 1933. His Federalist Society apologists and Department of Justice appointees claim that President Bush has the same power to interpret the Constitution as the Supreme Court. An Alito Court is likely to agree with this false claim.
Bush Justice Department official and Berkeley law professor John Yoo argues that no law can restrict the president in his role as commander in chief. Thus, once the president is at war – even a vague, open-ended "war on terror" – Bush's Justice Department says the president is free to undertake any action in pursuit of war, including the torture of children and the indefinite detention of American citizens.
The commander in chief role is probably sufficiently elastic to expand to any crisis, whether real or fabricated. Thus has the U.S. arrived at the verge of dictatorship.
This development has little to do with Bush, who is unlikely to be aware that the Constitution is experiencing its final rending on his watch. America's descent into dictatorship is the result of historical developments and of old political battles dating back to President Nixon being driven from office by a Democratic Congress.
There is today no constitutional party. Both political parties, most constitutional lawyers, and the bar associations are willing to set aside the Constitution whenever it interferes with their agendas. Americans have forgotten the prerequisites for freedom, and those pursuing power have forgotten what it means when it falls into other hands. Americans are very close to losing their constitutional system and civil liberties. It is paradoxical that American democracy is the likely casualty of a "war on terror" that is being justified in the name of the expansion of democracy.
Commentary:
When taking into account the present day effectiveness of the principle of separation of powers, one is able to ascertain the political philosophies about the benefits and, to an even greater extent, the vices and limitations of such a system. The Federalists argued that, with accordance to Montesquieu, when the governmental powers of legislation, executive execution, and judicature are placed within one single body, making that body the sole creator of laws, enforcer of laws, and reviewer of those laws, the liberty of the governed is compromised, since there are no restrictions upon that governing body, which, left unchecked, would be allowed to act without restraint, which, in turn, would allow tyrannical laws to be instituted by the tyrannical government, since, according to James Madison, tyranny is the accumulation of all governmental powers into a single body or person, hence constituting the said government as tyrannical. This concept, then, seems to be a profoundly beneficial one, allowing the governmental powers to remain in check, and hence safeguarding the liberties of its governed. In support of this principle, Madison also stated that the separate branches will not absolutely be isolated from each other, but instead they will have a certain amount of influence over each other, so that the government itself can still be a single, unified institution. What Madison argued was that the governmental branches would have some control over the actions of the others, but absolute power over one branch would most certainly not lie in the hands that maintain absolute power over another branch. This supplemental concept, as well, in theory, seems to present a beneficial principle in government, concerning the regulation of governmental powers and securing the liberties of the citizens. In argument of these philosophies, the Anti-Federalists stated that in order for such a system of government to function, the prudence of humans would have to be so great that it is able to properly create the three coequal branches of government, instill them with the same weighted political authority, and render their interests profoundly different, so that no two bodies are able to form a coalition against the third. The Anti-Federalists saw this as implausible, and argued that no such functional government had ever existed in reality. In theory, they stated, the British Constitution may be a manifestation of such a political system, but, in practice, even this system fails to satisfy the ideology of such a governmental principle. Hence, it was argued that such a government based on the principle of separation of powers would fail to work: the different orders of government would not produce a common good for the whole. The Anti-Federalists of course went on to propose their own idea for a federal government. They advocated the formation of a republican government, in which the people would retain ultimate sovereignty, arguing that any deviation from this form of government would lead to aristocracy, monarchy, or despotism. The proposition was that, due to the unwillingness and lack of information in people, a simple government should be created, that placed authority in one legislative body of men, elected by the people themselves, which would remain in office for a short period of time, and which would be removed at the next election if it did not satisfy the people. This way, the Anti-Federalists argued, a tie of responsibility would exist, which would dispel all the ills of a single legislature, and would best secure the rights of the people. This form of government possesses two underlying, paramount problems: a single, all-powerful legislature would have ultimate authority and control once elected, being able to reign unrestrained until the next election, when, even then, it could amass so much power that it completely takes over the entire state and establish a oligarchy; and it relies upon the prudence and pragmatic mentalities of people. People as a majority are simply not able to govern themselves, which is why direct democracy is not able to function properly over a large state. In order for the Anti-Federalists’ form of government to work, it requires that people be profoundly wise and capable of making fraternal and beneficial decisions, and that the elected body be almost completely without cupidity, greed, and self-interest, working cooperatively to only benefit society as a whole. As history dictates, this is, quite bluntly, not possible, for it is human nature itself to benefit one’s self prior to working for the common good.
Still, the separation of powers principle has its flaws, as Dr. Robert points out in his article. In theory, the principle works quite well, as do many others, including communism, but when human nature is taken into account, the principle has troubles in practice. As Dr. Roberts points out, the Bush administration is allocating power to itself, granting itself certain privileges that the executive branch is not meant to have, such as when President Bush vetos bills he signs into law by asserting unilateral authority as commander in chief to bypass or set aside the laws he signs, and when his Federalist Society apologists and Department of Justice appointees claim that President Bush has the same power to interpret the Constitution as the Supreme Court. Dr. Roberts goes on to say that the commander in chief role is probably sufficiently elastic to expand to any crisis, whether real or fabricated, and thus has the U.S. arrived at the verge of dictatorship. This caustic criticism of the present day federal system exposes the vices that were predicted by the Anti-Federalists. It is true that the system of separation of powers attempts to keep control over the government, but it is also true that the system is run by people, who are intrinsicly subject to human nature, indulging in corruption, greed, and, of course, the propagation self-interest.
Thus, both the Federalists and Anti-Federalists had their opinions about the Constitution and its principle of the separation of powers, and both groups had philosophies that had held true about the system. The Federalists attempted to create a system in which the government would not be able to become too powerful, and the Anti-Federalists warned that such a system would not be able to function properly. The present-day result is that the system is only able to work to a certain extent, until the reality of human nature manifests itself and allows for imbalance of power. Hence, both the Federalists’ and Anti-Federalists’ ideas about the principle of the separation of powers had truth in them.
An explanation about this system will be presented, as well as the conflicting viewpoints of the two parties, and an article that will offer support of the current situation concerning the balance and separation of power within the current federal government.
The online encyclopedia Wikipedia explains the principle premise of separation of powers and checks and balances:
Separation of powers (or trias politica, a term coined by French political thinker Montesquieu) is a model of democracy that involves the separation of political power between three branches of the state: The Executive, the Legislature, and the Judiciary. In the "separation of powers" model, each branch is prevented from exerting power in the field of responsibility of another branch. Nonetheless each branch of the state may be empowered to exert checks on the actions of the other branches.
The phrase "checks and balances" was also coined by Montesquieu. In a system of government with competing sovereigns (such as a multi-branch government or a federal system), "checks" refers to the ability, right, and responsibility of each power to monitor the activities of the other(s); "balances" refers to the ability of each entity to use its authority to limit the powers of the others, whether in general scope or in particular cases.
Keeping each independent entity within its prescribed powers can be a delicate process. Public support, tradition, and well-balanced tactical positions do help maintain such systems.
The essential difference between the separation of powers as developed in common law theory and in France was that in the former, the checks and balances inherent in the mixed constitution and in Montesquieu's analysis were incorporated into the doctrine. In France, on the other hand, the judges were regarded as sources themselves of tyranny and not liberty as in England, and the hostility of Jean-Jacques Rousseau to any check or limit on the popular will, combined to establish the 'non-interference' model of the separation of powers.
Famously, the framers of the United States Constitution are said to have taken the best of many concepts including the then-new concept of the separation of powers in drafting the constitution. The concept is also prominent in the state governments of the United States; as colonies of Britain, the founding fathers felt that the American states had suffered an abuse of the broad power of the monarchy. As a remedy, the American Constitution limits the powers of the federal government through several means, but in particular by dividing up the power of the government among three competing branches of government. Each branch checks the actions of the others and balances their powers in some way.
In Federalist No.47, James Madison contemplates and defends the particular structure of the new government and the distribution of powers among its different parts:
In the structure of the federal government, no regard, it is said, seems to have been paid to this essential precaution in favor of liberty. The several departments of power are distributed and blended in such a manner as at once to destroy all symmetry and beauty of form, and to expose some of the essential parts of the edifice to the danger of being crushed by the disproportionate weight of other parts. No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded.
The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied.
The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may be sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns, which, when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depositary of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote. From these facts, by which Montesquieu was guided, it may clearly be inferred that, in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "if the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the WHOLE power of one department is exercised by the same hands which possess the WHOLE power of another department, the fundamental principles of a free constitution are subverted. This would have been the case in the constitution examined by him, if the king, who is the sole executive magistrate, had possessed also the complete legislative power, or the supreme administration of justice; or if the entire legislative body had possessed the supreme judiciary, or the supreme executive authority. This, however, is not among the vices of that constitution. The magistrate in whom the whole executive power resides cannot of himself make a law, though he can put a negative on every law; nor administer justice in person, though he has the appointment of those who do administer it. The judges can exercise no executive prerogative, though they are shoots from the executive stock; nor any legislative function, though they may be advised with by the legislative councils. The entire legislature can perform no judiciary act, though by the joint act of two of its branches the judges may be removed from their offices, and though one of its branches is possessed of the judicial power in the last resort. The entire legislature, again, can exercise no executive prerogative, though one of its branches constitutes the supreme executive magistracy, and another, on the impeachment of a third, can try and condemn all the subordinate officers in the executive department. The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning. "When the legislative and executive powers are united in the same person or body," says he, "there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner. " Again: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for THE JUDGE would then be THE LEGISLATOR.
Were it joined to the executive power, THE JUDGE might behave with all the violence of AN OPPRESSOR. " Some of these reasons are more fully explained in other passages; but briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.
Antifederalist No.47 argues that “balance” of departments is not achieved under the new constitution:
I am fearful that the principles of government inculcated in Mr. [John] Adams' treatise [Defence of the Constitutions of Government of the United States of America], and enforced in the numerous essays and paragraphs in the newspapers, have misled some well designing members of the late Convention. But it will appear in the sequel, that the construction of the proposed plan of government is infinitely more extravagant.
I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams' sine qua non of a good government is three balancing powers; whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community. He asserts that the administrators of every government, will ever be actuated by views of private interest and ambition, to the prejudice of the public good; that therefore the only effectual method to secure the rights of the people and promote their welfare, is to create an opposition of interests between the members of two distinct bodies, in the exercise of the powers of government, and balanced by those of a third. This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr. Adams, although he has traced the constitution of every form of government that ever existed, as far as history affords materials, has not been able to adduce a single instance of such a government. He indeed says that the British constitution is such in theory, but this is rather a confirmation that his principles are chimerical and not to be reduced to practice. If such an organization of power were practicable, how long would it continue? Not a day-for there is so great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one or the other body, and with every accession of power the means of further increase would be greatly extended. The state of society in England is much more favorable to such a scheme of government than that of America. There they have a powerful hereditary nobility, and real distinctions of rank and interests; but even there, for want of that perfect equality of power and distinction of interests in the three orders of government, they exist but in name. The only operative and efficient check upon the conduct of administration, is the sense of the people at large.
Suppose a government could be formed and supported on such principles, would it answer the great purposes of civil society? If the administrators of every government are actuated by views of private interest and ambition, how is the welfare and happiness of the community to be the result of such jarring adverse interests?
Therefore, as different orders in government will not produce the good of the whole, we must recur to other principles. I believe it will be found that the form of government, which holds those entrusted with power in the greatest responsibility to their constituents, the best calculated for freemen. A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided. In such a government the people are the sovereign and their sense or opinion is the criterion of every public measure. For when this ceases to be the case, the nature of the government is changed, and an aristocracy, monarchy or despotism will rise on its ruin. The highest responsibility is to be attained in a simple structure of government, for the great body of the people never steadily attend to the operations of government, and for want of due information are liable to be imposed on. If you complicate the plan by various orders, the people will be perplexed and divided in their sentiment about the source of abuses or misconduct; some will impute it to the senate, others to the house of representatives, and so on, that the interposition of the people may be rendered imperfect or perhaps wholly abortive. But if, imitating the constitution of Pennsylvania, you vest all the legislative power in one body of men (separating the executive and judicial) elected for a short period, and necessarily excluded by rotation from permanency, and guarded from precipitancy and surprise by delays imposed on its proceedings, you will create the most perfect responsibility. For then, whenever the people feel a grievance, they cannot mistake the authors, and will apply the remedy with certainty and effect, discarding them at the next election. This tie of responsibility will obviate all the dangers apprehended from a single legislature, and will the best secure the rights of the people.
Dr. Paul Craig Robert, with respect to separation of powers, compares the actions of President Bush to Caesar crossing the Rubicon (this was considered an attack on Rome, and hence treason), and goes on to explain his opinions about the balance, or lack thereof, of power in the current federal government:
The Republican interest in strengthening executive power has its origin in agenda frustration from the constraints placed on Republican administrations by Democratic congresses. The thrust to enlarge the president's powers predates the Bush administration but is being furthered to a dangerous extent during Bush's second term. The confirmation of Bush's nominee, Samuel Alito, a member of the Federalist Society, to the Supreme Court will provide five votes in favor of enlarged presidential powers.
President Bush has used "signing statements" hundreds of times to vitiate the meaning of statutes passed by Congress. In effect, Bush is vetoing the bills he signs into law by asserting unilateral authority as commander in chief to bypass or set aside the laws he signs. For example, Bush has asserted that he has the power to ignore the McCain amendment against torture, to ignore the law that requires a warrant to spy on Americans, to ignore the prohibition against indefinite detention without charges or trial, and to ignore the Geneva Conventions to which the U.S. is signatory.
In effect, Bush is asserting the powers that accrued to Hitler in 1933. His Federalist Society apologists and Department of Justice appointees claim that President Bush has the same power to interpret the Constitution as the Supreme Court. An Alito Court is likely to agree with this false claim.
Bush Justice Department official and Berkeley law professor John Yoo argues that no law can restrict the president in his role as commander in chief. Thus, once the president is at war – even a vague, open-ended "war on terror" – Bush's Justice Department says the president is free to undertake any action in pursuit of war, including the torture of children and the indefinite detention of American citizens.
The commander in chief role is probably sufficiently elastic to expand to any crisis, whether real or fabricated. Thus has the U.S. arrived at the verge of dictatorship.
This development has little to do with Bush, who is unlikely to be aware that the Constitution is experiencing its final rending on his watch. America's descent into dictatorship is the result of historical developments and of old political battles dating back to President Nixon being driven from office by a Democratic Congress.
There is today no constitutional party. Both political parties, most constitutional lawyers, and the bar associations are willing to set aside the Constitution whenever it interferes with their agendas. Americans have forgotten the prerequisites for freedom, and those pursuing power have forgotten what it means when it falls into other hands. Americans are very close to losing their constitutional system and civil liberties. It is paradoxical that American democracy is the likely casualty of a "war on terror" that is being justified in the name of the expansion of democracy.
Commentary:
When taking into account the present day effectiveness of the principle of separation of powers, one is able to ascertain the political philosophies about the benefits and, to an even greater extent, the vices and limitations of such a system. The Federalists argued that, with accordance to Montesquieu, when the governmental powers of legislation, executive execution, and judicature are placed within one single body, making that body the sole creator of laws, enforcer of laws, and reviewer of those laws, the liberty of the governed is compromised, since there are no restrictions upon that governing body, which, left unchecked, would be allowed to act without restraint, which, in turn, would allow tyrannical laws to be instituted by the tyrannical government, since, according to James Madison, tyranny is the accumulation of all governmental powers into a single body or person, hence constituting the said government as tyrannical. This concept, then, seems to be a profoundly beneficial one, allowing the governmental powers to remain in check, and hence safeguarding the liberties of its governed. In support of this principle, Madison also stated that the separate branches will not absolutely be isolated from each other, but instead they will have a certain amount of influence over each other, so that the government itself can still be a single, unified institution. What Madison argued was that the governmental branches would have some control over the actions of the others, but absolute power over one branch would most certainly not lie in the hands that maintain absolute power over another branch. This supplemental concept, as well, in theory, seems to present a beneficial principle in government, concerning the regulation of governmental powers and securing the liberties of the citizens. In argument of these philosophies, the Anti-Federalists stated that in order for such a system of government to function, the prudence of humans would have to be so great that it is able to properly create the three coequal branches of government, instill them with the same weighted political authority, and render their interests profoundly different, so that no two bodies are able to form a coalition against the third. The Anti-Federalists saw this as implausible, and argued that no such functional government had ever existed in reality. In theory, they stated, the British Constitution may be a manifestation of such a political system, but, in practice, even this system fails to satisfy the ideology of such a governmental principle. Hence, it was argued that such a government based on the principle of separation of powers would fail to work: the different orders of government would not produce a common good for the whole. The Anti-Federalists of course went on to propose their own idea for a federal government. They advocated the formation of a republican government, in which the people would retain ultimate sovereignty, arguing that any deviation from this form of government would lead to aristocracy, monarchy, or despotism. The proposition was that, due to the unwillingness and lack of information in people, a simple government should be created, that placed authority in one legislative body of men, elected by the people themselves, which would remain in office for a short period of time, and which would be removed at the next election if it did not satisfy the people. This way, the Anti-Federalists argued, a tie of responsibility would exist, which would dispel all the ills of a single legislature, and would best secure the rights of the people. This form of government possesses two underlying, paramount problems: a single, all-powerful legislature would have ultimate authority and control once elected, being able to reign unrestrained until the next election, when, even then, it could amass so much power that it completely takes over the entire state and establish a oligarchy; and it relies upon the prudence and pragmatic mentalities of people. People as a majority are simply not able to govern themselves, which is why direct democracy is not able to function properly over a large state. In order for the Anti-Federalists’ form of government to work, it requires that people be profoundly wise and capable of making fraternal and beneficial decisions, and that the elected body be almost completely without cupidity, greed, and self-interest, working cooperatively to only benefit society as a whole. As history dictates, this is, quite bluntly, not possible, for it is human nature itself to benefit one’s self prior to working for the common good.
Still, the separation of powers principle has its flaws, as Dr. Robert points out in his article. In theory, the principle works quite well, as do many others, including communism, but when human nature is taken into account, the principle has troubles in practice. As Dr. Roberts points out, the Bush administration is allocating power to itself, granting itself certain privileges that the executive branch is not meant to have, such as when President Bush vetos bills he signs into law by asserting unilateral authority as commander in chief to bypass or set aside the laws he signs, and when his Federalist Society apologists and Department of Justice appointees claim that President Bush has the same power to interpret the Constitution as the Supreme Court. Dr. Roberts goes on to say that the commander in chief role is probably sufficiently elastic to expand to any crisis, whether real or fabricated, and thus has the U.S. arrived at the verge of dictatorship. This caustic criticism of the present day federal system exposes the vices that were predicted by the Anti-Federalists. It is true that the system of separation of powers attempts to keep control over the government, but it is also true that the system is run by people, who are intrinsicly subject to human nature, indulging in corruption, greed, and, of course, the propagation self-interest.
Thus, both the Federalists and Anti-Federalists had their opinions about the Constitution and its principle of the separation of powers, and both groups had philosophies that had held true about the system. The Federalists attempted to create a system in which the government would not be able to become too powerful, and the Anti-Federalists warned that such a system would not be able to function properly. The present-day result is that the system is only able to work to a certain extent, until the reality of human nature manifests itself and allows for imbalance of power. Hence, both the Federalists’ and Anti-Federalists’ ideas about the principle of the separation of powers had truth in them.
posted by Sanel at 12:51 PM
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